Coming of Age: The South Carolina Court of Appeals
by The Honorable Jasper M. Cureton

At the induction session of the South Carolina Court of Appeals in 1983, former Chief Judge Alexander M. Sanders compared the new court to a mule - "we have no pride of ancestry and whether we have hope of progeny remains to be seen." Judge Sanders retracted this statement on July 1, 1985, after learning of the historical antecedents to South Carolina's intermediate appellate court. "The Court of Appeals is not new to South Carolina and, indeed, has every reason to be proud of its historical ancestry."

Early Origins of the South Carolina Court of Appeals

The earliest vestiges of appellate review in South Carolina can be traced to 1721, when South Carolina was an English colony under royal governance. By statute, the General Court in Charleston was given appellate jurisdiction of civil case decisions from any inferior courts of law in existence at the time. However, many colonists were dissatisfied with this court system. The British appointees to the court were considered intellectually mediocre and dubious in character. Because of their experiences under English governance, colonists were determined to form an independent judiciary with qualified members. Early South Carolina constitutions carefully provided that judges would be independent by fixing their salaries and commissions. However, these constitutions failed to establish appellate courts.

The first constitutional provision for appellate review was in the original State Constitution which was adopted in 1790. The 1790 Constitution established a system where law judges would meet at the conclusion of circuit terms to decide motions for new trial and in arrest of judgment, as well as any points of law presented to them. The Constitution also authorized the legislative establishment of courts of equity. In 1799, the Legislature passed a statute that made writs of error available in cases at law. The same Act established an appellate body consisting of all the associate judges that met when the circuit terms concluded. "The Constitutional Court," as this body was called, operated in accordance with the Constitution of 1790, with the added condition that a judge would recuse himself from any appeal related to a case that he had heard at the trial level. For a period of time, this Constitutional Court heard appeals from cases at law, as well as those in equity.

In 1808, the Legislature established a court of appeals specifically to hear cases in equity. The judges of the Court of Equity would sit en banc and review the final decrees of the single chancellor below. If the court was completely satisfied with the trial judge's decree and the underlying rationale, the court would affirm the case and publish all or a portion of the trial decree. If the court disagreed with the result or agreed with the result for reasons other than those given by the trial judge, the court would render its full decision. As in modern practice, judges dissented and offered concurring opinions when they were divided. Although deemed a court of appeals, this system did not always provide true appellate review. In some cases, the trial chancellor also authored the appellate opinion. In one case, Judge William Harper had acted as the trial chancellor. An appeal of his ruling was brought before the court. One of the appellate judges recused himself because he had been counsel in the case. With the concurrence of the one remaining chancellor, Judge Harper affirmed himself, succinctly stating, "The court perceives no reason to dissent from the conclusions of the chancellor."

This early method of appellate review did not lead to the efficient administration of justice. A backlog of appellate cases resulted in a growing lack of confidence in the judicial system. In response to public criticism, the Legislature created the first Court of Appeals in 1824 and gave it the authority to review decisions from courts of both law and equity. The Court was not an intermediate appellate body, but a court of last resort that functioned similarly to the Constitutional Court. The Court consisted of three judges that the Legislature chose from among the judges of law and equity. Some of South Carolina's finest scholars and judges served this court, including Abraham Knott, C.J. Colcock, David Johnson, William Harper and John Belton O'Neall.

In 1834, a case was brought before this Court of Appeals that would lead to its ultimate demise, M'Cready v. Hunt. This famous "Test Oath" case thrust the Court of Appeals into the middle of a growing conflict between the supremacy of the federal government and state sovereignty. The pro-nullification South Carolina Legislature, in undeniable support of state supremacy, passed legislation mandating that officers in the State Militia recite an oath swearing allegiance to South Carolina rather than the federal government. M'Cready, an officer in the militia, refused the Legislature's oath, reciting the oath required of state officers contained in the South Carolina Constitution instead. Because M'Cready refused the oath of allegiance to South Carolina, he was denied a commission. Challenging the constitutionality of the legislative oath, M'Cready successfully petitioned Mr. Justice Bay for a writ of mandamus ordering the commander to grant him his commission. After losing at the trial level, M'Cready sought appellate review before the Court of Appeals. By a vote of two to one, the Court of Appeals held that the Legislature's oath was unconstitutional.

It is important to appreciate the intense and overheated political environment that existed at the time of the Court of Appeals' decision in M'Cready. Following the adoption by Congress of the Tariffs of 1828 and 1832, major political leaders within South Carolina began advocating the nullification of congressional actions. Others, who became known as Unionists, advocated caution and respect for the federal system. The 1832 election proved to be the battleground between the Nullifiers and the Unionists. The campaign was characterized by mob violence, a duel resulting in the death of a newspaper editor, and allegations of massive voter fraud. Ultimately, the Nullifiers won a sweeping victory, claiming overwhelming majorities in both houses of the Legislature.

The Governor promptly called the Legislature into special session and authorized the organization of a Nullification Constitutional Convention. The Convention declared on November 24, 1832, that all tariffs were "null, void and no law, nor binding upon the State, its officers or citizens." Ominously, the Convention also indicated that if there was any effort to coerce compliance with the tariffs, South Carolina would "forthwith proceed to organize a separate government." While the crisis was ultimately averted in 1833 by some modification of the tariff by the United States Congress, bitter feelings remained and many remained hostile to the continuation of the Union.

The Court of Appeals' decision in M'Cready was viewed as Unionist and pro-Abolitionist. In the course of upholding the supremacy of the State Constitution over the acts of the General Assembly, the Court of Appeals incurred the wrath of the Legislature to whom it owed its very existence. The General Assembly responded promptly by abolishing the Court of Appeals in the 1835 Legislative session. The following year the General Assembly passed an act providing for separate Courts of Appeals for cases in law and equity. The Act also provided that all the law judges and equity judges would sit en banc as a Court of Errors to hear appeals of constitutional questions, when the court was divided, or when any two judges certified the case.

During the twenty years following the elimination of the first Court of Appeals, the problems that initially prompted its creation resurfaced. In both law and equity cases, the appellant was disadvantaged by the fact that the trial judge also sat on the appellate body. Lamenting the inherent unfairness of such a system of appellate review, one commentator said:

Both sides do not go before the court on equal terms. The Judge, or Chancellor, on circuit may, and very frequently does, pronounce his decisions hastily; having expressed an opinion, the inclination of his mind, as well as that pride of opinion which is natural to every man of intellect, forces him almost irresistibly, to maintain the judgment first expressed; and the party appealing has to contend, not only against the advocate at the bar, but also against the advocate on the bench. This is a great evil.

Additionally, the appellate dockets became so backlogged that Governor David Johnson (who had served as a justice on the extinct Court of Appeals and concurred with Judge O'Neall in M'Cready) complained to the Legislature that normal resolution of litigation took ten years.

The Legislature finally responded in 1859 with a statute that reestablished the Court of Appeals. This new appellate court consisted of a Chief Justice and two Associate Justices. In many ways, this court functioned similarly to the present Court of Appeals. Under the Act, the Court of Appeals rendered final decisions in most cases in both law and equity. However, if a constitutional question or conflict of laws issue was presented, the judges of the courts of law and equity would convene along with the Court of Appeals in a Court of Errors. The Court of Errors also convened to address issues when requested by any two judges of the Court of Appeals. The Chief Justice of the Court of Appeals presided over the Court of Errors. Decisions of the Court of Errors were always final.

With the advent of the Civil War, once again, the Court's hopes of posterity were thwarted by its lack of constitutional protection, as well as the sweeping changes in South Carolina's governmental institutions caused by the War.

Following the Civil War, a constitutional convention was called. At that convention, a constitution was adopted that established a system of courts for the first time in the State's history. The Constitution of 1868 provided for a Supreme Court, circuit courts, and such inferior courts as the Legislature should provide. However, this constitution did not establish an intermediate appellate court.

The Rebirth of the Court of Appeals

In the 1970s, the appellate backlog increased at a rapid pace. It became obvious that change was needed to remedy the delays in the appellate system. In 1979, the General Assembly passed an Act creating the forerunner to the present day Court of Appeals. In that Act, the Court was given exclusive appellate jurisdiction of only criminal and family court cases. The Court was to consist of a Chief Judge and four associate judges. It was to begin operation on July 1, 1980. The General Assembly elected five judges to sit on the Court: John A. Martin, Robert C. Lake, Jr., Theo Walker Mitchell, John P. (Jack) Gardner, Sr., and Thomas L. Hughston, Jr. However, these men never sat as a judicial body to hear an appeal.

Before the Court of Appeals was formally organized, Governor Richard W. Riley and Attorney General Daniel R. McLeod brought an action challenging the constitutionality of the Act before the State Supreme Court in its original jurisdiction. In State ex rel. Riley v. Martin, the Supreme Court affirmed the Legislature's general authority to create the Court of Appeals, but struck certain portions of the Act. Four of the five judges-elect were held ineligible to sit on the Court of Appeals because they had been members of the General Assembly at the time of the court's creation. A state statute prohibited a legislator from holding a position created by the Legislature in which he sat. The Supreme Court held that Judge Gardner, one of the five judges-elect, was eligible to serve because he was not a legislator at the time of his election. The Supreme Court further held that some of the Act's provisions unconstitutionally infringed upon the administrative powers of the Chief Justice. During the next few years, the General Assembly struggled to remedy the problems that had hindered the reestablishment of the Court of Appeals. In 1982, questions related to the Court of Appeals were brought before the Supreme Court again in Maner v. Maner. In Maner, the Supreme Court clarified the status of the Court of Appeals after the Riley decision. The Court concluded that although certain portions of the Act creating the Court of Appeals were found unconstitutional in Riley, the remaining provisions remained in full force and effect. There was indeed a Court of Appeals with four vacant seats. In 1983, the Legislature amended the 1979 Act to create a six-judge Court of Appeals. The Court would exist under statutory authority until June 30, 1985. Unless the Court received voter sanction as a constitutional tribunal before that date, it would self-destruct. The Court's jurisdiction was expanded to hear all cases except death penalty cases, public utility cases, significant constitutional issues, public bond issues, and cases related to elections. Five additional judges were elected to join Judge Gardner on the Court: Judges Alexander M. Sanders, Curtis G. Shaw, Randall T. Bell, Jasper M. Cureton, and C. Tolbert Goolsby. Judge Alex Sanders was elected the first Chief Judge. On October 17, 1983, the Court of Appeals finally convened in a special inaugural session. As part of the inaugural ceremonies, the South Carolina Bar presented the Court with a special Court seal designed by Judge Bell. The Court of Appeals initially operated under the authority of the 1983 legislation. In the November 1984 General Elections, voters approved a constitutional amendment making the South Carolina Court of Appeals a constitutional court. The voter referendum was ratified by the General Assembly on January 17, 1985. On July 1, 1985, the South Carolina Court of Appeals became a constitutional court, shielded from political and social influences like those that had destroyed South Carolina's first Court of Appeals. The Permanent Home of the Court of Appeals Having obtained constitutional authorization, the Court of Appeals began looking for a permanent home. Since its inaugural session in 1983, no specific space had been allocated for the Court of Appeals and arguments were heard in a hearing room in the Blatt Building. The Court's administrative offices were three blocks away. All records and supplies were carried back and forth between the two locations. It was obvious that the Court could not continue to operate in this manner. A number of ideas were considered to accommodate the Court. Suggestions to build an annex to the Supreme Court were rejected because of foreseeable problems with parking and limited room for growth. As Judge Sanders walked across the State House grounds to the Blatt Building to hold court one day, he encountered retired Attorney General Daniel McLeod. In the course of their conversation, Mr. McLeod informed Judge Sanders that the fifth floor of the Calhoun Building contained a courtroom. At Judge Sanders' request, Judge Bell obtained the Calhoun Building's original plans from the State Archives. The plans confirmed that there was a courtroom on the fifth floor. The Calhoun Building was designed in the 1920s to house all state department offices. When constructed, the fifth floor was to be the home of the Supreme Court. However, the Supreme Court refused to utilize the space. The only official explanation given for its refusal was that there was no door between the conference room and library and the courtroom had poor acoustics. However, it was widely believed at the time that the Supreme Court, as an equal and coordinate branch of government, considered it demeaning to be removed from the State House and given a floor in the building that housed state agencies. Despite renovations in 1954, the Calhoun Building was in poor repair by 1985. While the original plans indicated an elaborate courtroom, a visual inspection of the fifth floor only revealed plaster falling off sheetrocked walls, partitioned cubicles, and a suspended ceiling. Undaunted by surface appearances, the judges placed a camera in a hole they had punched in the ceiling and took shots at random. The developed pictures unmasked a vaulted ceiling with ornate molding. With the support of the Supreme Court, Judge Sanders persuaded the General Assembly to appropriate money to renovate the Calhoun Building for use as the home of the Judicial Department, except for those divisions located at the Supreme Court. The costs of the renovation doubled because of unanticipated expenses that arose in the course of the project. Asbestos and PCB-contaminated transformers had to be removed. Adequate and appropriate marble for the Court was also difficult to obtain. The black marble that had been used in the courtroom could only be found in Italy. Because of importation restrictions, the marble was confiscated by United States Customs when it arrived in Charleston. In order to get the marble, the State had to persuade Customs Agents that similar marble was not available in the United States. Furthermore, the sixty-year old structure was not easily redesigned to meet the technological and staffing needs of the Court in this modern age. Despite these obstacles, on October 10, 1988, court was held in the fifth floor courtroom of the Court of Appeals for the very first time. The Court of Appeals finally had a home. The Court of Appeals' physical plant and location reflect both the majesty of its past and the certainty of its future. The Judicial Evolution of the Court of Appeals When the Court of Appeals was reestablished in 1983, the Legislature intended it to render final decisions in most cases. The Supreme Court would involve itself only in those cases having substantial precedential value. However, the system was not implemented as planned. Initially, the Court of Appeals operated as a diversionary court. When cases were docketed in the Supreme Court and ready for hearing, a certain percentage of them were transferred to the Court of Appeals for disposition. In 1992, the Supreme Court announced changes that would comport with the original intention for the Court of Appeals and make Supreme Court review totally discretionary. Implementing these changes would take time. However, as a preliminary step, the Supreme Court ordered the Court of Appeals to increase its docket. The Court also directed some procedural changes, such as preassigning cases. Over the years, the Court's membership has grown and changed. In 1992, Judge Sanders resigned after accepting an offer to serve as President of the College of Charleston. The Chief Judge seat remained vacant until 1993 when Judge William T. Howell was elected. Judge Gardner retired the same year and was replaced by Judge Carol Connor. Judge Randell Bell was elected to the Supreme Court in May 1994. In 1995, Judge Kaye G. Hearn filled the seat left vacant upon Judge Bell's election to the Supreme Court. In 1994 Supreme Court Chief Justice Ernest A. Finney initiated steps to implement fully the discretionary review system. The General Assembly was persuaded in 1995 to add three additional judges to the Court of Appeals, increasing its membership to nine. In 1996, Judge Shaw retired and was replaced by Judge Ralph King Anderson, Jr. That same year, the General Assembly elected Judges Thomas E. Huff, H. Samuel Stilwell, and William L. Howard to the Court. The Supreme Court also modified some of the appellate rules and increased staff support to complete the implementation of this new system. Currently, the Court of Appeals functions principally to correct trial errors. The Court sits in three-judge panels. Service on the panels is rotated. As soon as briefing is complete, cases are preassigned to an authoring judge. However, each judge is charged with the responsibility of being familiar with all the panel's cases. This process helps to ensure that case preassignment does not result in single-judge dispositions. Each term, before oral arguments are heard or the cases otherwise disposed of, the panels meet and thoroughly discuss the cases. This interaction minimizes the possibility of error or oversight and encourages thorough preparation by the Judges and their law clerks. For those cases orally argued, the panels meet again after oral argument to finalize disposition of the cases. From its beginning the South Carolina Court of Appeals has been cognizant of its role in this State's judicial system. Its noble history of upholding the rule of law above the passions of the times has been its legacy. The modern court strives to continue to build upon that distinctive tradition.